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05/20/2016

As recess looms, lawmakers push bills through funnel

Major legislation pending on advertising, open government

Dennis Hetzel Executive DirectorBy Dennis Hetzel, Executive Director

I’m now in my sixth year doing government relations work on behalf of ONA members. This is the craziest period I’ve seen in terms of the number of fast-moving bills that could impact you. Several are very consequential in terms of business and open government issues.

The challenge for me and our government relations partners at Capitol Consulting in Columbus is two-fold:

  1. Make sure our voices are heard so that bills are in the best-attainable condition before they hit the governor’s desk. For example, the House passed an extraordinary 20 bills on Wednesday; four of them had language on public records that ONA was involved in writing or amending.
  2. Try not to miss anything as dormant bills start moving with lightning speed; sometimes with substitute language and new amendments added at the last moment.

After May, the Legislature probably will not return until after the November election to hold what observers predict will be a short-and-wild session. Bills that don’t reach the governor by Dec. 31 will die and have to be reintroduced in the next two-year session that starts in 2017.

In 2017, by the way, be prepared for a fresh tax-reform proposal from the Kasich Administration that likely will include sales tax expansion again. We don’t know – and probably they don’t either at this point – if this will include a proposed sales tax on advertising and marketing expenses.

Here’s a status report on the bills we are following.

The three most important pending bills

Open records appeals: Senate Bill 321 would, for the first time, give Ohio a statutory process in which citizens denied access to records can appeal without having to hire a lawyer and go to court. For $25 and 45 days or less, a court of claims specialist would issue a binding ruling in many cases. Both sides still could appeal with a possible path to winning legal fees. The bill has been a long-time ONA goal, and we are pleased to have bipartisan support with Senate President Keith Faber, Attorney General Mike DeWine and State Auditor Dave Yost in the lead. It has quickly passed the Senate and may pass the House before the end of May. It also “fixes” a language issue that the Ohio Supreme Court flagged two years ago in a decision that has made it harder to collect attorney’s fees -- even if you’re right.

Sheriff’s sales: House Bill 463 is a comprehensive reform of Ohio’s laws on foreclosures. The bill preserves requirements for newspaper notices. In fact, the notices will get a little longer in some cases with the notice of a date for a second sale if there are no qualified bids in the first sale. However, notices for second sales would not be required in that situation. The bill has quickly passed the House and now is in the Senate Civil Justice Committee.

Digital advertising: The state Department of Taxation has begun broadly interpreting an outdated statute that opens the door to applying the sales tax to digital advertising and marketing services as an “electronic information service” subject to taxation. HB 466 attempts to fix that. We’ve testified in favor of the bill in both the House and Senate. It passed the House 93-0 and may pass the Senate next week.

Some other bills of interest

Cyber-bullying: After several years of effort, a bill to create criminal penalties for those that use digital means to harass and intimidate may become law. HB 151 awaits Gov. Kasich’s signature at this writing. ONA achieved language that prevents an over-zealous prosecutor from charging a media outlet simply for exercising its First Amendment right to report the news. (Example: You publish a newsworthy photo on your website. Someone claims it led to bullying or harassment.)

Data Ohio: HB 130 should help journalists in the coming years. It creates uniformity in how records are posted online, requires digital records in native, “machine-readable” formats for easier analysis and sets a uniform accounting system for more governmental bodies, making it easier to do comparison stories. The bill passed the House and awaits Senate action.

‘Mugshot’ sites: HB 172 regulates websites and publications by making it a criminal offense to charge someone to remove criminal record information such as booking photographs. Although this borders on extortion, such efforts in other states have run into First Amendment issues since these booking photos are public records. We worked closely with the sponsor, Rep. John Barnes, to accept the bill as written. It has passed the House and awaits Senate action.

Sunshine ‘tweaks’: We also worked with the office of Attorney General DeWine to accept SB 227, which passed the Senate and awaits House action. Among other things, it expands the exemption of personal identifying information to include bank account information. Although we felt existing case law covered this adequately, legislators wanted more specificity. The bill makes a positive change to require open meetings training for public officials, not just open records training. It also makes a slight change to when bidding information becomes public.

Cosmetology tests: This is a good example of the kind of work we do on bills that would be quite obscure to journalists. You never know when something might be a subject of news, as the recent New York Times series on the pedicure industry proves. SB 213 has passed both chambers and should soon go to the governor. Thanks to Rep. Mike Curtin, a former journalist, there is a “sunset provision” that means information about tests given to cosmetology license applicants become public records in the future. We also worked with the backers to ensure that the language wasn’t overly broad.

Confidential addresses: No one would oppose helping domestic violence victims keeping their addresses secret from abusers, which is the purpose of HB 359, which has passed the House and awaits Senate action. However, the original language would have blocked access to all information about the program, even aggregated data and expenditures. We worked closely to narrow the language as much as possible so that just those things that need to be secret are secret. Unfortunately, this bill will add a new exemption to the open records law. We’ll be up to “dd.”

Body cameras: HB 407 would require police departments utilizing body cameras to have publicly available policies on their usage, including how they handle public records requests. It does not modify any current law on access to this footage, which is the subject of an important, pending Ohio Supreme Court case. To my surprise, this bill remains in a House committee and seems likely to hold over until the fall now. I expect much more activity around body cameras in the future.

Military records: HB 423 has unanimously passed the House and Senate action seems likely. It makes secret any “call to duty” military orders in state or local government possession. Much of this information is routinely public through other channels, including federal law. Again working with Rep. Curtin, we were able to get a “sunset clause” making these records open in the future. I have a hard time imagining terrorists making public records requests to the school district to find out where the high school principal is deployed overseas – not to mention the large number of deployments that have nothing to do with terrorism or the Mideast. Supporters say this gives peace of mind to some families. I get it. Still, maybe we’re letting the terrorists win with legislation like this.

Executive sessions: HB 413 makes what we considered to be a minor, justifiable tweak in the open meetings law to allow township officials to discuss disposal of other property than real estate in executive session. The decisions become public. The bill has passed the House and awaits Senate action.

Private colleges: HB 504 clarifies a recent Ohio Supreme Court ruling that should help private colleges comply with the mandate that their police reports are public records if they are using sworn, commissioned officers. This gives the schools the same protection from liability for “breach of confidentiality” for disclosing records that governmental agencies have. We support the bill, though I don’t think it will move until this fall.

See, I told you we’ve been busy. As always, we invite your questions and comments. Send to dhetzel@ohionews.org.

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